protective provisions" inherent to law
392/1978 are not applicable to contracts
regulating the lease of business units,
to regulate all their respective rights,
including the possibility to agree
to a preemptive waiver for goodwill
indemnification (without penalty of legal
invalidity).
not need to address the specific problem
of whether the tenant was or was not
entitled to any goodwill for his/her shop
located in the shopping mall because it
was not even a consideration.
The new decision of High Court
issued in September 2016 overturned the
former situation and recognized that the
tenant of a shop in a mall is entitled to
an indemnification for goodwill.
The Court recognized that there
is a reciprocal synergy of commercial
activity located in the same area. It
underlined that the goodwill of the
whole shopping mall is not a stand-alone
goodwill different from the goodwill of
each activity located inside it but, on the
contrary, it is the sum of such goodwill.
If not, shops located in areas that "by
their own" constitute an attraction could
indemnity, such as Quadrilatero della
Moda (Via Montenapoleone district), or
the Mercerie district in Venice, or the
Harbour district in Portofino, or many
other areas of particular commercial,
historical and cultural/artistic interest.
What are/will be the results of the
new guidance?
It is more than likely that the owners
of shopping malls shall be encouraged
to utilize the "lease of business units"
measure (with relevant freedom in
agreeing a pre-emptive waiver to
goodwill).
By contrast, the tenants could use
the value of the goodwill and relevant
waiver (which is now recognized by case
law) as "leverage" to enter into a better
economic agreement.
From both perspectives--the owners
as well as the tenants--the clause
regulating goodwill in shopping malls
shall become more appealing.
Last but not least, one must take
into consideration that the legislative
framework of law 392/1978 has been
recently "revised" by law n. 164/2014,
which has introduced--upon the
condition that the annual rent provided
in the lease agreement exceeds Euro
250,000--the "freedom of contract"
lease agreement. Consequently, these
contracts (commercial property lease
agreements with annual rent exceeding
Euro 250,000) shall be considered
similar to business lease agreements and,
therefore, may include preventive waiver
to goodwill indemnification.
As a final comment, our wish is that
the overflow of shops in malls shall
not "water down" a brand's value by
confusing the unique selling proposition
of each brand in the mind of the
consumer.
paid, if in the new store the same/similar activity
as that of the former lessee is being carried out and
such new activity is started within one year from the
termination of the former lease agreement.
(ii) in case the commercial activity is not open to the
public and (iii) for professional activities and temporary
activities.
in that it includes a group of goods and resources
organized to run the business and not only a property
(and not only the agreement regulating the use of the
estate).
premises, without such features it might bring to a risk
of a requalification of the contract with application of
the rules of Law 392/78 (protecting the lessee).